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Showing 301 to 320 of 558 Records
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2012 (2) TMI 439
Reversal of CENVAT Credit - Confirmation of interest and penalty - Held that:- As such the Explanation-II read with Rule 14 which in turn refers to the provisions of Section 11AB, the non-payment of the credit amount would result in confirmation of interest against the assessee. When the law itself provide for confirmation of interest, I find no reasons to accept the appellants’ plea for setting aside the interest confirmation - appellants are liable to pay interest on the late reversal of Modvat Credit - Following decision of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - confirmation of interest is upheld.
The appellants were admittedly clearing their final exempted products on payment of 10% of the value of the same in terms of provisions of Rule 6(3)(b). Proper returns were being filed by them. The mistake came into notice of the Revenue only as a result of audit. I find that the this is a genuine mistake without any colour of suppression or mis-statement on the part of the appellants. As such I find that the penalty of Rs. 1 lakh imposed upon the appellants is not justifiable, the same is accordingly set aside - Decided partly in favour of assessee.
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2012 (2) TMI 438
CENVAT Credit - Non maintenance of separate accounts - Violation of provisions of Rule 6(3) of Cenvat Credit Rules - Held that:- if the Commissioner finds that the credit reversed by the assessee is not correctly reversed, the only option available to the Commissioner is to calculate it correctly and then ask them to reverse the correct amount. It goes without saying that before adopting the above manner of calculation, he has to give reasons as to why he considers that the calculation given by the assessee is not proper and he has to disclose the method he is going to adopt to the assessee so that the assessee can make submissions as to why the calculation adopted by him may or may not be justified. After the retrospective amendment made by Section 73 of Finance Act, 2010, there is no scope for demanding the assessee to pay 10%/5% of the value of the exempted product. Prima facie, we are convinced that the assessee has complied with the provisions of the amended Rule 6 of Cenvat Credit Rules, 2004.
Retrospectively amended provisions are applicable for the impugned period also. If the calculations submitted by the appellant is not correct, the Commissioner has to calculate the correct amount to be reversed explaining the method he proposes to adopt and giving an opportunity for hearing the appellant. Therefore, we set aside the impugned order and remand the matter to the adjudicating authority to properly decide the quantum of input credit to be reversed by the appellants as per provisions of Rule 6 of Cenvat Credit Rules - Decided in favour of assessee.
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2012 (2) TMI 437
Rate of duty - Debonding of duty - Held that:- appellant, a 100% EOU, had, at the time of debonding, achieved positive NFE and were eligible for migration to EPCG Scheme in terms of the provisions of Condition No. 8 of the Notification No. 22/2003-C.E. issued under Section 5A of Central Excise Act, 1944, and Condition No. 8 of Notification No. 52/2003-Cus. issued under Section 25(1) of Customs Act, 1962. In terms of the provisions of these Notifications, at the time of debonding the duty on the capital goods is payable on the depreciated value and at the rate in force on the date of clearance on debonding - a 100% EOU at the time of debonding can be allowed to migrate to EPCG Scheme provided it has positive NFE. However, while the rate of Customs duty chargeable on the capital goods imported under EPCG scheme has been prescribed under Notification No. 64/2008-Cus. issued under Section 25(1) of Customs Act, 1962 and the same along with the education cess is 3.09%, on Central Excise side, there is no such parallel notification issued under Section 5A of Central Excise Act, 1944, prescribing a similar concessional rate of duty in respect of capital goods supply under EPCG scheme.
Prima facie in absence of such an Excise Exemption Notification, the EPCG rate prescribed under Customs Notification No. 64/2008-Cus. dated 9-5-2008 cannot be treated as concessional rate of Excise duty chargeable on indigenously manufactured goods at the time of their debonding by a 100% EOU migrating to EPCG Scheme, as this is an omission on the part of the Government, which cannot be remedied by the Courts or the Tribunal. In view of this, we are of view that this is not the case for total waiver - Conditional stay granted.
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2012 (2) TMI 436
Demand of duty - Confiscation of cash - Demand on the ground that the inputs which were found short were used in the manufacture of finished goods and cleared without payment of duty - Held that:- shortage arrived at by counting size wise of goods and by taking average weight of one of each category - Further, in the case of shortage of input, in the absence of any evidence on record to show that the same was used in the manufacture of finished goods and cleared without payment of duty, the demand cannot be made on these goods - In the absence of any evidence on record that the amount in question is sale proceeds of clandestinely removed goods, the confiscation is not sustainable - Decided in favour of assessee.
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2012 (2) TMI 435
Remission of duty - Non-observance of the procedure as recorded in the Manual - Held that:- procedure as recorded in the Manual is required to be followed but in the facts and circumstances of the present case involving the product which is perishable in nature and the said fact as to be kept in a particular temperature, I am of the view that the strict non-observance of the above Rule should not be adopted as a reason for denial of the benefit otherwise available to the appellant. Admittedly, there was fire in the appellants factory, intimation about the same was given to the Revenue. Superintendent visited the factory within 4 days, subsequent destruction of the goods was in the presence of surveyor, who also issued certificate of destruction and the same was also intimated vide their letter dated 9-5-2005. In these circumstances, it will not be justifiable to deny the benefit of remission to the appellant on the sole ground of strict observance of the procedure. As such, by extending the benefit to the appellant, I set aside the impugned order of the Commissioner denying the remission - Decided in favour of assessee.
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2012 (2) TMI 434
Denial of exemption under S. No. 32D in Notification No. 6/2002-C.E., dated 1-3-2002 - Process not done at assessee's premises - Held that:- exemption cannot be denied for the reason that blending was not done in a tank of the Appellants. The Appellants control the blending process and take responsibility for the standards of the blended product. Since the products were used for the intended process, we prima facie do not agree that exemption should be denied for the reason that process of blending took place in the tanks of trucks. Also there is no condition in the notification that Appellants should have been holding a license from BIS authorities. Prima facie we do not agree with the argument of Revenue that the Appellants were collecting amounts representing as excise duty from the consumers when the goods were sold at a price inclusive of all costs and levies. The provisions of Section 11D appears to be prima facie not applicable, to the situation. Accepting the interpretation canvassed by Revenue will result in total denial of exemption that is notified by the Revenue which is prima facie not justified. The notification does not prescribe that the blended product should be sold at a lower price - Appellants have made out a prima facie case for waiver of pre-deposit of dues arising from the impugned order for admission of the appeal - Stay granted.
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2012 (2) TMI 433
Confiscation of goods - Goods cleared without payment of duty - Held that:- Commissioner (Appeals) has held the goods not liable for confiscation and there is no challenge by the Department against these findings. We agree with the ld. Advocate that once the goods itself are not liable for confiscation vehicles also would not be liable for confiscation and vehicles owners would also not be liable for any penalty - Decided in favour of assessee.
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2012 (2) TMI 432
Classification of goods - Classification under Heading 9033.00 or Chapter 8544.00 - Held that:- Heading 9033.00 covers parts and accessories of the machines, appliances, instruments or apparatus of Chapter 90. Inasmuch as the optical fibre cables fall under Chapter 90 as held by the Tribunal in the above referred decision, the parts would fall under Chapter 90.33. As such in terms of the law declared by the Tribunal in the above referred decision, we hold the correct classification of the joint-closure/box of optical fibre cables would fall under Heading 9033.00. We accordingly set aside the impugned order - Decided in favour of assessee.
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2012 (2) TMI 431
Duty demand - Shortage in stock - Clandestine removal of manufactured goods - Held that:- before coming to a firm conclusion about the shortage detected during the stock taking the nature of commodity and the method of stock taking done has to be taken into account. We find that the commodity involved in this case is accounted in RG-I register in MTs and the stock verification is done by measuring the length of the pipes and the number of the pipes by segregating the pipes into three broad categories of light, medium and heavy. Thereafter weight per meter for each of the three categories are assumed and total weight of all pipes is arrived at. The basis of the standard linear density adopted is not explained. There is nothing in Panchnama to show that correctness of linear density has been verified by weighing at least sample pipes from the three categories. It is very obvious that the weight per meter depend upon the thickness. Thickness of sheets used is not recorded in Panchnama. In the absence of these critical parameters the ascertained stock as per the Panchnama is not reliable.
Revenue has not been able to adduce any collateral of clandestine removal. Therefore we are of the view that the quantity ascertained in the stock taking is not accurate enough to come to the conclusion that there was manufacture of goods without accounting and clearance of such goods. We also noticed that the internal record dated 29-5-2005 shows goods cleared for despatch as on that date. It is difficult to conclude that the document indicated the physical stock of goods on that day - Decided in favour of assessee.
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2012 (2) TMI 430
Denial of CENVAT Credit - Cenvat credit on outward freight - Held that:- The period involved in this case is from April, 2008 to September, 2008. Both sides agree that there is no challenge to the demand confirmed in this case. I find that provisions of the ingredients of suppression of facts, etc., envisaged under proviso to Section 11A and under Section 11AC have not been invoked in this case. I also find force in the contention of the appellants that they were under bona fide belief that the provisions relating to credit on outward freight was not clear and they have availed the credit only under bona fide belief and the matter relates to interpretation of law. Therefore penalty is not imposable under Section 11AC of Central Excise Act, 1944 and Rule 15 of Cenvat Credit Rules, 2004 - Decided in favour of assessee.
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2012 (2) TMI 429
Availment of CENVAT Credit - Held that:- both the lower adjudicating authorities have given concurrent and cogent finding and in terms of Rule 9(1)(a)(ii) the invoices issued by the importer is a valid document. The provisions of Rule 9(1)(ii) and Rule 9(1)(a)(iii) are independent. Therefore I do not find any reason to interfere with the concurrent finding of both the lower authorities - Decided against Revenue.
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2012 (2) TMI 428
Exemption under Notification No. 67/95-C.E., dated 1-3-1995 - Extension for intermediate product - Held that:- appellants is eligible for benefit under Rule 19(2) of Central Excise Rules, 2002, although the final goods are exempted - appellants satisfy all conditions specified in Notification No. 43/2001-C.E. (N.T.), issued under the said Rule - appellant is eligible for benefit of Rule 19 and the major procedural requirements have been complied with. Therefore, we grant waiver of pre-deposit of dues arising from the impugned order for admission of the appeal and there shall be stay on collection of such amounts during the pendency of the appeal - stay granted.
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2012 (2) TMI 427
Discrepancy in RG-1 Register - Shortage of approximately 1% in the quantity of goods accounted in RG-1 register - Held that:- It is not possible to achieve exact match between goods accounted in bulk and goods accounted in packed condition. We note that the percentage difference detected is very minimal. Further in almost all commodities the manufacturers who want to maintain their reputation is likely to adopt practices by which the quantity in the retail pack is not less than what is declared on the pack. Since the assessment is based on MRP of the product this does not result in any revenue loss. This type of cases cannot be sustained without proof of clandestine removal and no such proof has been adduced - Decided against Revenue.
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2012 (2) TMI 426
Waiver of pre deposit - Duty demand - Denial of benefit on Notification No. 43/2001 - Held that:- wherein waiver and stay were granted in respect of an amount of duty of excise which was demanded from the assessee on the ground that the benefit of the two notifications could not have been simultaneously availed by them. Both sides have adverted to other factual aspects of the case also. However, for the present purpose, we think we can take a view without detailed discussion on such factual details. Prima facie, any violation of conditions of the customs notification would have resulted in a demand of customs duty on the imported materials. The Revenue has no case that the packing materials were procured indigenously by the appellant without following the procedure laid down under Notification No. 43/2001-C.E. (N.T.). This notification prima facie does not refer to any customs exemption notification. On these facts, prima facie, the appellant can claim waiver of pre-deposit and stay of recovery on the strength of the Stay Order cited by the counsel. It is ordered accordingly. In the result, there will be waiver and stay in respect of the duty and penalty amounts - Stay granted.
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2012 (2) TMI 425
Waiver of pre deposit - Denial of Refund claim - Benefit of Notification No. 56/2002-C.E., dated 14-11-2002 - Held that:- appellants have a strong case in view of Chapter Note 8 in Chapter 38 and also in view of the fact that Revenue is accepting excise duty paid on the same goods manufactured in other localities. Therefore, we grant waiver of requirement of pre-deposit of entire dues arising out of impugned order and stay the recovery thereof during the pendency of the appeals - Stay granted.
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2012 (2) TMI 424
Denial of benefit of Notification No. 50/2003-C.E., dated 10-6-2003 - appellant has not filed the requisite declarations and has not exercised his option in writing before effecting the first clearance - Held that:- admittedly a declaration in terms of Notification No. 49/2003-C.E., dated 10-6-2003 was filed by the appellant. The purpose of filing a declaration is to put the Revenue on notice, as regards the appellant’s option to avail the benefit of the notification. Otherwise also, both the notifications, being area based notifications are available to the units located in that particular area. The only difference between the two notifications is that whereas Notification No. 49/2003-C.E. is available to the units located in the entire State but relates to the positive list of goods mentioned therein, Notification No. 50/2003-C.E. is available to units located in specified areas. The purpose of both the notifications is to develop the area by expanding the benefit of exemptions from payment of duty of excise.
The requirement of filing a declaration is a procedural condition. The benefit of the notification is not based upon the said procedural requirement of filing a declaration. In any case, declaration stands filed by the appellant. The fact that Notification No. 49/2003-C.E. was mentioned instead of Notification No. 50/2003-C.E., cannot be considered to be a mistake fatal to the appellant’s claim of benefit. It is well settled law that the substantive benefit if otherwise available should not be disallowed on the basis of minor procedural irregularities. In the present case, we find that even such irregularity of non-filing of declaration was not there - Decided in favour of assessee.
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2012 (2) TMI 423
Duty demand - Duty as per Rule 8 of the Central Excise Rules, 2002 - Held that:- Rule 8(3A) prescribed only that the goods will be treated as non-duty paid and the consequence prescribed under Central Excise Rules will follow. It does not say that any consequences under Cenvat Credit Rules, 2004 will follow. That is to say the assessee is entitled to take credit during the defaulting period. The only consequence of Rule 8(3A) can be that payment through Cenvat credit cannot be the proper discharge of duty liability when the default continues. But once the default is made good, along with interest we prima facie, do not see any reason to hold that the payment made through Cenvat credit during the period of default cannot be considered as good payment - Following decision of CCE v. Saurashtra Cements - [2010 (9) TMI 422 - GUJARAT HIGH COURT] has held that in such situation penalty under Rule 27 of Central Excise Rules only will apply which will be a small amount only - Conditional stay granted.
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2012 (2) TMI 422
Confiscation of goods - Excisability of weigh bridge - Revenue was of the view that inasmuch as all the parts and components of weigh bridge are being cleared by the appellant under the cover of one invoice, the same amounts to clearance of complete weigh bridge in SKD or CKD condition - Held that:- appellants have placed on record a letter from the Revenue, obtained by them in terms of provisions of RTI Act, 2005. In terms of the said letter, the order of the Commissioner (Appeals) i.e. Order-in-Appeal Nos. 196 & 197/CE/D-II/2011, dated 18-4-2011 stands accepted by the Committee of Commissioner and no appeal stand filed against before the Tribunal. In view of the above development, we are of the view that the appellant has a strong prima facie case in its favour so as to allow both stay petitions unconditionally - Decided in favour of assessee.
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2012 (2) TMI 421
Cenvat credit - suppression/under-valuation - M/s. CPCL has approached to the Settlement Commission and without accepting the allegation in the show-cause notice, opted to settle the matter by paying duty and the interest which has been considered by the Settlement Commission while settling the issue wherein M/s. CPCL has been given immunity from penalty and prosecution. Therefore, the allegation of suppression has not attained finality as the same has not been adjudicated – Held that:- allegations were not established at any stage and they remained allegations only. The Settlement Commission has settled the issue and not decided or established the allegations of suppression, etc. On this point, the action taken by the Appellant cannot be faulted, since the proceedings before the Settlement Commission were conclusive. So far as the availment of CENVAT Credit on the strength of supplementary invoices dated 30-6-2006 is concerned, undisputedly they have taken the credit only on 31-7-2006 on the date when the duty had been paid by M/s. CPCL - We find that in the Appellant’s own case on the same issue (2011 (6) TMI 520 - CESTAT, MUMBAI) has been decided by the Co-ordinate Bench of the Tribunal at Mumbai, while relying upon the decision in the case of Bosch Chassis Systems (India) (2008 (9) TMI 106 - CESTAT NEW DELHI). In these circumstances, since we find that the impugned Order is not sustainable - Decided in favour of assessee.
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2012 (2) TMI 420
CENVAT Credit - Remission of excise duty through PLA - Wrong availment of CENVAT Credit - Held that:- prima facie Rule 8(3) or Rule 8(3A) of Central Excise Rules, 2002 do not have the effect of denying the eligibility for Cenvat credit because Rule 8(3A) prescribes that if there is a default, the consequence under the Central Excise Rules will follow and there is nothing mentioned about denying the benefit governed through Cenvat Credit Rules, 2004. In the normal circumstances, payment made through Cenvat credit account is a good discharge of duty liability. The exception carved out in Rule 8(3A) is that payment through Cenvat credit is not a good payment when assessee is a defaulter. This exception will last only till the default lasts. Once default is made good, the payment made through credit account becomes good payment even if paid before paying the defaulted amount - Conditional stay granted.
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